COMMONS AMENDMENT (Hansard, 14 July 1999)

§ Lord Falconer of Thoroton

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 142, which substitutes a new version of Schedule 2. Clause 5 of the Bill defines, in very broad terms, the services which the commission may provide as part of the community legal service. Schedule 2 lists categories of service and proceedings which proceedings are not, for the time being, eligible for funding under the community legal service.

Amendment No. 142 simplifies and clarifies the drafting of Schedule 2. Although it is a lengthy amendment, it does not represent a change of policy. The redrafted schedule more accurately and clearly gives effect to the Government's intentions, as set out in the White Paper, and explained by the noble and learned Lord the Lord Chancellor during our debates on this topic. The original Schedule 2 was closely based on the provisions of the current Legal Aid Act. The revised schedule better reflects the new and very different structure of the community legal service. The original also contained some obsolete or unnecessary provisions. It lacked precision and clarity. This amendment revises. Schedule 2 to make it both more precise and concise.

I shall first explain what the revised schedule provides, before I explain the changes that have been made to the original version.

The revised schedule has two paragraphs. The first lists the areas of law for which the legal services commission may not fund any help except general information about the law, the legal system and the availability of legal services. In other words, in these categories specific advice about a case and more substantial services may not be funded by the legal services commission as part of the community legal service.

The second paragraph lists the courts and proceedings for which the legal services commission may fund advocacy. This ranges from any proceedings in the county courts, for example, to specific proceedings in the magistrates' courts. Any other categories of case—that is, those not covered by paragraphs 1 or 2—will be eligible for all services except advocacy.

489 What are the reasons for the differences between the old and new versions. First, paragraphs 1 to 3 of the original schedule have been combined into one paragraph. Although the intended scope of each paragraph was the same, the wording was different because of the word "proceedings" in paragraphs 2 and 3. By avoiding that word, it has been possible to combine these paragraphs into one.

The revised paragraph adopts the words of Clause 5(2)(a). It remains the Government's intention that the very basic services described in Clause 5(2)(a) should be available for all types of problem or case. Sub-paragraph (a) deals with the removal from scope of most personal injury cases. This is limited to injury allegedly caused by negligence and, as such, the exclusion would not apply, for example, to allegations of abuse or assault. As the noble and learned Lord the Lord Chancellor has repeatedly stated, some cases of negligently caused damage will remain eligible for public funding because they are not well-suited to conditional fees. For that reason, he intends to direct that cases with high overall or initial investigative costs, and cases of wider public interest shall remain eligible for consideration for funding.

Sub-paragraphs 1(b) to (h) repeat the other exclusions previously set down in paragraphs 1 to 3 of Schedule 2. These are conveyancing, boundary disputes, the making of wills, matters of trust law, defamation or malicious falsehood, matters of company or partnership law and other matters arising out of the carrying on of a business. Within these broad exclusions, there are a number of specific matters which should continue to be eligible for funding; and the noble and learned Lord the Lord Chancellor intends to use his power to direct to provide for these also.

First, he intends to provide for advice and assistance about wills and conveyancing in those circumstances where it is currently available under the Green Form scheme; for example, advice about wills for the disabled and the over-70s.

The existing paragraph 3(d) allows funding for proceedings relating to a trust; arising from the joint ownership or occupation of domestic property". The way in which the new paragraph 1 is drafted makes it unnecessary to refer specifically to this. The schedule does not exclude funding where an issue about a trust, or for that matter a company or partnership, arises in what is essentially an ancillary relief case.

The exclusion in sub-paragraph (h) for matters arising out of the carrying on of a business is still intended to apply to businessmen bringing and defending cases, not to consumers bringing cases against businesses.

Paragraph 4 of the original schedule has been removed, as it is unnecessary. It was drafted so as to mirror the provisions of the current Legal Aid Act.

Paragraph 5 of the existing schedule deals with those proceedings for which the commission may fund representation. This is too broad a term, and has been changed to "advocacy" to reflect more accurately the scope of the existing scheme.

490 There are some other minor changes in paragraph 2. Amendment No. 142 makes the Bill clearer, simpler and shorter. I commend it to the House.

Amendment No. 142A, moved by and in the name of the noble Lord, Lord Goodhart, would remove personal injury from the list of excluded categories in paragraph 1 of Schedule 2. The noble and learned Lord the Lord Chancellor has said repeatedly in previous debates in this House that he is satisfied that the vast majority of personal injury work can be funded satisfactorily under conditional fee agreements. We do not consider it appropriate to use taxpayers' money to support litigation where a good alternative exists. Your Lordships know that the Government intend to increase access to justice. That means ensuring that the money available is spent to achieve the greatest effect.

I have already said that for cases which cannot be wholly supported by a conditional fee, additional help will be available from the community legal service fund. This will mean that cases which have exceptionally high investigative or overall costs will still be eligible for help. And because public interest will also be a criterion in funding decisions, some cases which would not currently be given legal aid may qualify under the new scheme. For these reasons, I invite the noble Lord to withdraw his Amendment No. 142A.

Amendment No. 142B also seeks to amend the exclusion of personal injury. This amendment seeks to allow funding of a case where it was not reasonably practical for the case to be conducted on a conditional fee basis, and the case met the same criteria for funding as apply to a clinical negligence case.

The first part of this amendment is, I submit, unnecessary because the exceptions we intend to make for high cost and public interest cases are specifically designed to catch that minority of personal injury cases that are not viable under a conditional fee agreement, but nevertheless merit funding. If, quite exceptionally, an individual case that demanded public funding fell into none of the three general exceptions, the legal services commission could seek the Lord Chancellor's authority to fund it under Clause 7(8)(b).

As for the second part of Amendment No. 142B, I am puzzled why it is thought that the statute should require the same criteria for funding to apply to general personal injury cases and clinical negligence cases. Different types of case involve different issues. Each should be considered on its own merits, not against criteria designed for a another type of case. For these reasons, I also invite the noble Lord to withdraw Amendment No. 142B.

Amendment No. 142C would extend legal aid for representation in hearings under Section 82 of the Environmental Protection Act. The noble and learned Lord the Lord Chancellor has already spoken about this subject in reply to Amendment No. 56A, and I shall not repeat him at this late hour. The Government will bring forward an alternative amendment in the Commons to ensure that conditional fees remain available in these cases. I therefore do not believe that this amendment is necessary and again invite the noble Lord to withdraw.